There are actually two divergent views on how a defense attorney should approach a lineup:
Viewpoint #1: Defense counsel should merely observe and take no action or make any objection to the lineup, in the hope of obtaining a tainted lineup, and then having the identification excluded at trial. The California Supreme Court in People v Bustamante (1981) 30 C3d 88, 99 n7, overruled on other grounds in People v Johnson (1992) 3 C4th 1183, 1222, supports this choice:
At most, defense counsel is merely present at the lineup to silently observe and to later recall his observations for purposes of cross-examination or to act in the capcity of a witness.
[i]t is an idle gesture to give to a defendant the right to the presence of counsel at this stage of the criminal proceeding and not to require such counsel to take affirmative action at that time to protect the rights of the accused.
For example, this ensures that law enforcement officials at the lineup don’t try to use undue influence by making statements such as, “Doesn’t number 4 look familiar to you?”
Whichever approach you select, you need to be prepared to attend lineups on very short notice. It’s helpful to keep a lineup folder in your briefcase with everything you’ll need, including
- a summary of case law on lineups (such as a copy of CEB’s California Criminal Law Procedure and Practice, chapter 22),
- a chart to write down characteristics of lineup participants,
- a sheet for eyewitnesses to mark at the lineup,
- pens and pencils, and
- blank paper.
Bringing a camera, if permitted, can also help in providing a record of what occurred in jurisdictions that don’t routinely photograph lineups.
If you agree with viewpoint #2 and plan to object to the lineup procedure, clearly state (preferably in writing) any objections to the manner in which the lineup is conducted. Bring a blank piece of paper with the typed caption “Lineup Objection” to add credibility to any written objections you make at the lineup. Even if, after objection, the officers conducting the lineup refuse to make any changes to any aspect of the lineup process, putting objections on the record may be helpful at a later hearing to suppress any identification.
For much more on lineups, including specific things defense counsel can do to help ensure a fair lineup, turn to CEB’s California Criminal Law Procedure and Practice, chapter 22. And please share which lineup viewpoint you take in the comments to this post; it will be interesting to see where more folks land on this issue.
Related CEB blog posts:
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